CPSC Revokes Its Position on Unblockable Pool Drains

Around 18 months after issuing a definition of an “unblockable” pool drain that was contentious even among its own members, the Consumer Product Safety Commission (CPSC) now has revoked its position that a pool drain cover alone can create an unblockable drain.

Three of the CPSC’s five commissioners voted this morning that pools and spas with drains that had been deemed unblockable by virtue of being fitted with the appropriate certified covers must also be fitted with a secondary means of protection against entrapment, such as a safety vacuum release system (SVRS), gravity drainage system or automatic pump shut-off system.

This morning’s revocation is the latest development in the CPSC’s efforts to interpret and enforce the Virginia Graeme Baker Pool & Spa Safety Act (commonly referred to as VGB or P&SSA), which was passed by Congress in 2007. The VGB Act requires that all public pools and spas be fitted with certified covers on every suction outlet and that pools and spas with a single main drain, other than an unblockable drain, must also be equipped with a secondary anti-entrapment system.

In April 2010, the CPSC issued technical standards to clarify the definition of an unblockable drain, which was described in the VGB Act only as “a drain of any size and shape that a human body cannot sufficiently block to create a suction entrapment hazard.” By a vote of three to two, the agency finalized its criteria for an unblockable drain as one “that is large enough that its open area cannot be blocked by an 18-by-23-inch element used in testing,” and that during testing flow around the blocking element has to maintain a certain rate. It also stated that a smaller drain could be rendered unblockable if fitted with an appropriate cover.

In the draft notice of revocation made public before the vote, the CPSC said it had decided to vote on the matter after receiving 156 letters urging the commission to reconsider its position that a drain cover could be sufficient protection against entrapment because that cover could come off or break.

“In light of these letters, we have reconsidered our interpretation of an ‘unblockable drain,’ … and believe it was in error,” the draft notice said. “Regardless of the size of a drain and its cover, the drain cover can come off, presenting a risk of entrapment. We believe that not requiring an additional layer of protection in the form of a secondary anti-entrapment system thwarts the layers of protection intended by the VGB Act.”

Commissioner Anne Northrup, who cast a dissenting vote, said during this morning’s meeting that the real reason that the CPSC was voting was because Paul Pennington, president of Vac-Alert, Santa Rosa, CA, a company that manufactures SVRS equipment, had convinced Rep. Debbie Wasserman-Schultz (D-FL) and several other members of Congress that his system was necessary.

The other dissenting commissioner, Mary Nord, echoed Northrup’s concerns that Pennington’s biased influence had been too strong and urged the other commissioners, Robert Adler, Thomas Moore and Chairman Inez Tenenbaum, not to revoke the commission’s position in haste.

“Why don’t we put this out for public comment?” Nord said. “Let’s find out how the states have reacted to our earlier position, let’s find out how many pools we’re talking about, let’s find out if there have been some incidences […]. Let’s act like a federal regulatory agency. Let’s get the facts and then let’s reconsider this issue based on the law and the facts.”

The CPSC’s decision may placate those who did not agree with its April 2010 interpretation of what constitutes an unblockable drain, but it could have some negative consequences, according to the National Swimming Pool Foundation (NSPF), an aquatics industry organization.

Prior to the vote, the NSPF issued a statement warning the CPSC that revoking its current interpretation would “create confusion in the market with no net benefit.” The organization’s statement also pointed out that since the VGB came into effect, there have been no U.S. entrapment fatalities and no serious injuries, and that closing public pools in order to fit them with additional anti-entrapment systems (or because they cannot afford to do so) could lead to a higher number of drownings.

“We have reason to celebrate that there have been no suction entrapment deaths in the last three years,” Thomas M. Lachocki, CEO of the NSPF, based in Colorado Springs, CO, said in response to this morning’s revocation. “In stark contrast, over 1,500 families have lost a loved one due to drowning this year alone. The recession has resulted in hundreds of pool closures, reducing swim lessons and increasing unemployment. The commission's decision to include another level of entrapment protection may increase drowning risk as pools close and fewer children learn to swim.”